IN THE CASE OF:	  

		BOARD DATE:  17 September 2013

		DOCKET NUMBER:  AR20130003285 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his reentry (RE) code be changed to show he is eligible for reenlistment.

2.  The applicant states the repeal of the Don't Ask, Don't Tell (DADT) policy makes him eligible for reenlistment.

3.  The applicant provides a copy of his Honorable Discharge Certificate and a self-authored letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 June 1995.  He completed training and was awarded military occupational specialty 97E (Interrogator).

2.  On 11 August 1998, he admitted to his commander that he was a homosexual and provided a sworn statement to the fact.

3.  On 19 August 1998, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 15 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for homosexuality.  The specific reason for the discharge was his admission of being a homosexual. 

4.  On 19 August 1998, the applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel.  He was advised of the bases for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by and a personal appearance before an administrative separation board and he elected not to submit a statement on his own behalf.  He also acknowledged:

* he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both State and Federal law

5.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of homosexuality.

6.  On 20 August 1998, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexuality with the issuance of an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 27 August 1998. 

7.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 15 of Army Regulation 635-200 and his service was characterized as "Honorable."  He completed 3 years, 2 months, and 2 days of active service.  He was also assigned separation code "JRB" and RE code 4.

8.  Army Regulation 635-200, chapter 15, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge would reflect the character of the Soldier’s service.

9.  The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

10.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF))
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category

11.  The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted.  Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law.  Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during those same or prior periods.  Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 26 June 1995 to 27 August 1998.  He admitted to his commander he was a homosexual.  Accordingly, his chain of command initiated separation action against him. 

2.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.  He was assigned the RE code 4 in accordance with the governing regulations in effect at the time.

3.  The law has since been changed and current standards may be applied to previously-separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality should now have their reason for discharge, RE code, and characterization of service changed.  

4.  In view of the foregoing, his narrative reason for separation should be changed to Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 to show he was discharged by reason of "Secretarial Authority," with an SPD code of "JFF" and an RE code of "1" on 
27 August 1998.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130003285



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ABCMR Record of Proceedings (cont)                                         AR20130003285



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